JANGIR SINGHversusTHE STATE OF PUNJAB

                        [2018] 13 S.C.R. 731                             731


                          JANGIR SINGH                                   A
                                  v.
                     THE STATE OF PUNJAB
                 (Criminal Appeal No. 2499 of 2009)
                        OCTOBER 31, 2018                                 B
 [N. V. RAMANA AND MOHAN M. SHANTANAGOUDAR,
                     JJ.]
       Penal Code, 1860: ss. 304 Part I and 300 Exception II - Right
to private defence – Benefit of – On facts, altercation between the
                                                                         C
appellant and the victim, in presence of other colleagues – Victim
aimed rifle at the appellant and the appellant fired gunshot at the
victim in exercise of his right of private defence of his body and
killed the victim – Acquittal by the trial court, however, the High
Court convicted the appellant u/s. 302 holding that the right to
private defence on the part of the appellant was not made out – On       D
appeal, held: Owing to the imminent danger perceived by the
appellant from the aiming of rifle at him by the deceased, he fired at
the deceased and killed him – Having regard to the situs of the
injury–chest of the deceased, it is clear that the accused exceeded
the power given to him in law and caused the death of the deceased
                                                                         E
against whom he exercised right of private defence without
premeditation – Absence of good faith is not found in exercise of
right of private defence – In view thereof, offence committed by the
appellant converted to s. 304 Part I – Appellant having already
undergone the maximum sentence prescribed for the offence
committed u/s 304 Part-I, is directed to be released forthwith.          F
      Disposing of the appeal, the Court
      HELD: 1.1 The right to private defence cannot be claimed
by the accused, if disproportionate harm has been caused, while
defending himself or any other person. However, if the accused
has not caused disproportionate harm, then the benefit of                G
Exception II to Section 300 IPC can be given to the accused.
[Para 11][736-E-F]
     1.2 The fateful incident at the hands of appellant was
pursuant to an altercation with the deceased for around 15 minutes,
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                                 731
732           SUPREME COURT REPORTS                   [2018] 13 S.C.R.


A     in the presence of other colleagues. Both the deceased and the
      appellant–accused were altercating face-to-face and standing at
      a distance of 10 feet from each other. This shows that they could
      see the facial expressions of each other clearly and comprehend
      the apprehending circumstances accordingly. Taking note of the
      fact that owing to the imminent danger perceived by the appellant
B
      from the aiming of rifle at him by the deceased, he fired at the
      deceased and killed him. This comes within the ambit of right to
      private defence, however, it clearly traverses beyond the
      legitimate exercise of the same. The appellant–accused chose to
      shoot on a vital part of the body i.e., chest to safeguard himself
C     from the imminent threat. However, the accused could have
      avoided the vital part of the deceased. But absence of good faith
      is not found in exercise of right of private defence. However,
      having regard to the situs of the injury (i.e. the chest of the
      deceased), it is clear that the accused has exceeded the power
      given to him in law and has caused the death of the deceased
D
      against whom he exercised right of private defence without
      premeditation. In cases of disproportionate harm leading to death
      of the aggressor, sentence under Section 304 Part I is the
      appropriate sentence. Thus, offence committed by the accused–
      appellant will fall under Section 304 Part I IPC. [Para 12, 13]
E     [737-D-H; 738-A-B]
            1.3 Taking into consideration all the material facts, the
      conviction under Section 302 IPC passed by the High Court is
      set aside and the same is converted to Section 304 Part–I IPC.
      [Para 17]739-C-D]
F           1.4 The appellant has undergone 10 years of actual
      imprisonment which amounts to 18 years of imprisonment as per
      the concerned State Jail Manual. As the maximum sentence
      prescribed for the offence committed under Section 304 Part I,
      IPC is 10 years and the appellant is stated to have already
G     undergone 10 years of actual imprisonment. The appellant is
      directed to be released forthwith. [Para 18][739-D-E]
           Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC
           244; James Martin v. State of Kerala (2004) 2 SCC 203;
           Darshan Singh v. State of Punjab (2010) 2 SCC 333;
H          Bhanwar Singh v. State of Madhya Pradesh (2008) 16
           JANGIR SINGH v. THE STATE OF PUNJAB                              733


      SCC 657; Udaikumar Pandharinath Jadhav Alias                          A
      Munna v. State of Maharashtra (2008) 5 SCC 214:
      Trilok Singh v. State (Delhi Administration) 1995 SCC
      (Cri) 158; Pathubha Govindji Rathod v. State of Gujarat
      (2015) 4 SCC 363 – referred to.
(1971) 3 SCC 244                 referred to               Para 10          B
(2004) 2 SCC 203                 referred to               Para 10
(2010) 2 SCC 333                 referred to               Para 10
(2008) 16 SCC 657                referred to               Para 11
(2008) 5 SCC 214                 referred to               Para 14          C
1995 SCC (Cri) 158               referred to               Para 15
(2015) 4 SCC 363                 referred to               Para 16
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2499 of 2009                                                            D
      From the Judgment and Order dated 07.04.2008 of the High Court
of Punjab and Haryana at Chandigarh in Criminal Appeal No. 160-DBA
of 1994.
      Ashwani Bhardwaj, Adv. for the Appellant.
                                                                            E
     Ms. Jaspreet Gogia, Ms.Mandakini Singh, Advs. for the
Respondent.
      The Judgment of the Court was delivered by
      N. V. RAMANA, J. 1. This appeal arises out of the impugned
judgment dated 07.04.2008, passed by the High Court of Punjab and           F
Haryana at Chandigarh in Criminal Appeal No. 160-DBA/1994, whereby
the High Court has reversed the judgment of acquittal passed by the
Sessions Judge, Faridkot dated 14.05.1993, and convicted the appellant-
accused under Section 302 IPC and Section 27 of the Arms Act.
       2. The Sessions Judge, Faridkot vide Judgment dated 14.05.1993       G
acquitted the appellant from the offences punishable under Section 302
I.P.C. and Section 27 of the Arms Act on the ground that the appellant
fired gunshot at the deceased in exercise of his right to private defence
of his body. Thus, he was exonerated from the liability under Section
302 of IPC. However, on appeal, the High Court reversed the findings
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734            SUPREME COURT REPORTS                        [2018] 13 S.C.R.


A     of the Sessions Judge on the ground that the right to private defence at
      the part of the appellant was not made out. Aggrieved by the Judgment
      of the High Court, this appeal is preferred under Section 379 of the
      Code of Criminal Procedure, 1973.
             3. Facts of the case in a nutshell are such that the incident in
B     question took place on 05.06.1991 at around 7.30 P.M. wherein the
      appellant shot down Jaswant Singh (hereinafter referred to as “the
      deceased”) by his Self Loading Rifle of Bore 303. The appellant and
      the deceased were working together as Punjab Home Guard Volunteers.
      The incident took place when the deceased demanded Rs.100/- from
      the appellant, which was borrowed by the appellant previously. The
C     appellant got enraged due to the fact that the borrowed money was
      demanded in front of the other Punjab Home Guard colleagues and it
      was insulting for the appellant. The appellant had an altercation with the
      deceased for around 15 minutes, pursuant to which the appellant fired at
      him and consequently, he died.
D            4. Learned counsel for the appellant-accused vehemently
      contended that the High Court has reversed the well-reasoned and detailed
      judgment of acquittal of the trial court by re-appreciating evidence in a
      different manner and taking a different view. According to the learned
      counsel, it was a clear case of right to private defence, thus, sentencing
E     under Section 302 IPC by the High Court is unwarranted.
            5. On the other hand, learned counsel for the respondent-State
      submitted that the present appeal by the appellant is not based on any
      cogent reasons rather the same has been filed on surmises and
      conjectures. Further, it has also been submitted that all the material
F     evidence and testimonies of relevant witnesses viz., P.W.-3 and P.W.-4
      have been taken into consideration, in the well-reasoned judgment of the
      High Court and the same does not call for interference by this Court.
             6. After perusing the material placed before this Court, we are of
      the considered view, that the conviction by the High Court is solely based
G     on the evidence of P.W.-3(ASI Sukhdev Singh), who is a witness to the
      incident. Therefore, evidence of P.W.-3 calls for the examination by this
      Hon’ble Court.
              7. The evidence of PW-3 clarifies that the deceased had 303 bore
      rifle with him at the time of occurrence. So also, the accused had the
      rifle. PW-3 was standing at a distance of about 60 feet from the appellant
H
              JANGIR SINGH v. THE STATE OF PUNJAB                               735
                        [N. V. RAMANA, J.]

and the deceased where the incident has taken place. It is admitted by          A
him in cross-examination that he looked at the accused and the deceased
only when he heard the sound of gunshot. He did not notice as to who
was the aggressor and as to whether the altercation between the accused
and the deceased had taken place or not. Looking at the trend of answers
given by PW-3 in the cross-examination, it is clear that he did not see as
                                                                                B
to how the incident started and continued. Thus, there can be no
categorical deduction from the evidence of PW-3 that the accused fired
at the deceased with premeditation.
       8. On the other hand, the evidence of PW-4 specifies that the
deceased had aimed a rifle at the accused, obviously because of an
altercation between them, pursuant to which the accused also used his           C
gun to fire at the deceased suddenly, without any premeditation. The
evidence of PW-4 corroborates the defence taken by the accused as
found in his statement under Section 313 of the Cr.P.C.
       9. The evidence of PWs 3 and 4 collectively would show that
though the incident has taken place because of the gunshot fired by the         D
accused towards the deceased and the deceased lost his life, but the act
of the accused will fall under Exception II to Section 300 of the IPC, in
as much as the fire by the accused was due to the aforementioned fact
of the deceased pointing gun towards the accused, i.e., because of the
threat perception created by the deceased in the mind of the accused.           E
       10. Before proceeding any further, it is essential to put-forth things
that are to be considered by the Courts, while giving benefit of right to
private defence to the accused, as per Exception II to Section 300 of
IPC, to determine the ‘quantum’ of this right. This Court in the case of
Vidhya Singh v. State of Madhya Pradesh,1 observed that-                        F
         “7. … The right of self-defence is a very valuable right. It
         has a social purpose. That right should not be construed
         narrowly.”
Further, in the case of James Martin v. State of Kerala,2 following
observations were made by this Court-                                           G
         “18. … Situations have to be judged from the subjective
         point of view of the accused concerned in the surrounding
1
    (1971) 3 SCC 244
2
    (2004) 2 SCC 203
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736                SUPREME COURT REPORTS                      [2018] 13 S.C.R.


A              excitement and confusion of the moment, confronted with
               a situation of peril and not by any microscopic and pedantic
               scrutiny. In adjudging the question as to whether more force
               than was necessary was used in the prevailing
               circumstances on the spot, it would be inappropriate, as
               held by this Court, to adopt tests by detached objectivity
B
               which would be so natural in a courtroom, or that which
               would seem absolutely necessary to a perfectly cool
               bystander. The person facing a reasonable apprehension of threat
               to himself cannot be expected to modulate his defence step by
               step with any arithmetical exactitude of only that much which is
C              required in the thinking of a man in ordinary times or under normal
               circumstances.”
      Similarly, in the case of Darshan Singh v. State of Punjab,3 this Court
      went further and gave few parameters to adjudge the exercise of right
      to private defence in following terms-
D              “56. In order to find out whether the right of private defence is
               available or not, the injuries received by the accused, the
               imminence of threat to his safety, the injuries caused by
               the accused and the circumstances whether the accused
               had time to have recourse to public authorities are all
E              relevant factors to be considered.”
                                                          (emphasis supplied)
            11. Further, it is a settled law that the right to private defence
      cannot be claimed by the accused, if disproportionate harm has been
      caused, while defending himself or any other person. However, if the
F     accused has not caused disproportionate harm, then the benefit of
      Exception II to Section 300 of IPC can be given to the accused. This
      proposition has been well explained in the case of Bhanwar
      Singh v. State of Madhya Pradesh,4 wherein this Court made the
      following observations -
G              “50. The plea of private defence has been brought up by the
               appellants. For this plea to succeed in totality, it must be
               proved that there existed a right to private defence in favour
               of the accused, and that this right extended to causing death.
      3
          (2010) 2 SCC 333.
      4
H         (2008) 16 SCC 657.
            JANGIR SINGH v. THE STATE OF PUNJAB                                   737
                      [N. V. RAMANA, J.]

       Hence, if the court were to reject this plea, there are two                A
       possible ways in which this may be done. On one hand, it may
       be held that there existed a right to private defence of the
       body. However, more harm than necessary was caused or,
       alternatively, this right did not extend to causing death. Such
       a ruling may result in the application of Section 300, Exception
                                                                                  B
       2, which states that culpable homicide is not murder if the
       offender, in the exercise in good faith of the right of private
       defence of person or property, exceeds the power given to
       him by law and causes the death of the person against whom
       he is exercising such right of defence without premeditation,
       and without any intention of doing more harm than is                       C
       necessary for the purpose of such defence. The other situation
       is where, on appreciation of facts, the right of private defence
       is held not to exist at all.”
                                                      (emphasis supplied)
        12. Now, to consider the question as to whether the exercise of           D
right of private defence by the appellant-accused was legitimate or not,
it is undisputed that the fateful incident at the hands of appellant was
pursuant to an altercation with the deceased for around 15 minutes, in
the presence of other colleagues. Both the deceased and the appellant-
accused were altercating face-to-face and standing at a distance of 10            E
feet from each other. This shows that they could see the facial
expressions of each other clearly and comprehend the apprehending
circumstances accordingly. Taking note of the fact that owing to the
imminent danger perceived by the appellant from the aiming of rifle at
him by the deceased, he fired at the deceased and killed him. This, in our
opinion comes within the ambit of right to private defence, however, it           F
clearly traverses beyond the legitimate exercise of the same. The
appellant-accused chose to shoot on a vital part of the body i.e., chest to
safeguard himself from the imminent threat. However, the accused could
have avoided the vital part of the deceased. But, we do not find absence
of good faith in exercise of right of private defence. However, having            G
regard to the situs of the injury (i.e. the chest of the deceased), it is clear
that the accused has exceeded the power given to him in law and has
caused the death of the deceased against whom he exercised right of
private defence without premeditation. Thus, offence committed by the

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738                SUPREME COURT REPORTS                       [2018] 13 S.C.R.


A     accused-appellant will fall under Section 304 Part I of the IPC.
            13. The law on this aspect of causing disproportionate harm and
      exceeding right to private defence is amply clear. In cases of
      disproportionate harm leading to death of the aggressor, sentence under
      Section 304 Part I is the appropriate sentence. This has been done by
B     this Court in catena of cases.
            14. In the case of Udaikumar Pandharinath Jadhav Alias
      Munna v. State of Maharashtra,5 this Court acquitted the accused
      from charges under Section 302 IPC and modified the conviction to
      Section 304 Part I of IPC, as per the following observations-
C               “5. We observe from the evidence that the deceased was not
                only a karate expert but also armed with a knife and it is not
                surprising that the appellant apprehended injury at his hands. We
                are therefore of the opinion that the best that can be said for the
                prosecution at this stage is that the appellant had exceeded the
D               right of private defence. We therefore partly allow the appeal,
                acquit the appellant of the charge under Section 302 IPC
                and modify his conviction to one under Section 304(1) IPC
                in the background that the fatal injury caused on the chest
                had penetrated deep into the body. We also impose a sentence
                of 7 years’ rigorous imprisonment on the appellant; the other part
E               of the sentence to remain as it is.”
            15. Further, in the case of Trilok Singh v. State (Delhi
      Administration),6 this Court made observations regarding modification
      of conviction from Section 302 IPC to Section 304 Part I IPC and the
      same is as follows-
F
                “6. We have gone through the entire evidence of PW 24 and PW
                25. The evidence of PW 24 is to the effect that he saw the accused
                and the deceased were quarrelling and he went to the house and
                informed PW 25. … But the question is whether he could go
                to the extent of causing the death. No doubt in a situation
G               like this it cannot be expected that the accused has to
                modulate his right of self-defence. But when he went to his
                house and brought a knife and caused the death it cannot
                be said that he did not exceed the right of private defence.
      5
          (2008) 5 SCC 214
      6
          1995 SCC (Cri) 158.
H
               JANGIR SINGH v. THE STATE OF PUNJAB                                739
                         [N. V. RAMANA, J.]

          We cannot give the benefit to the appellant under Section               A
          100 IPC and the act committed by him only attracts
          exception to Section 300 IPC. Therefore the offence
          committed by him could be one under Section 304 Part I
          IPC.”
                                               (emphasis supplied)                B
      16. Similar view was taken by this Court in Pathubha Govindji
Rathod v. State of Gujarat,7 wherein it was ruled that the accused
exceeded his right to private defence. Thus, appeal was partly allowed,
conviction under Section 302 was set aside and the accused was
convicted under Section 304 Part I of the IPC.                                    C
      17. Thus, taking into consideration all the material facts, discussions
and observations made hereinabove, we deem it proper to set aside the
conviction under Section 302 of IPC passed by the High Court and convert
the same to Section 304 Part-I of the IPC.
       18. Herein, it is brought to our notice that the appellant has             D
undergone 10 years of actual imprisonment which amounts to 18 years
of imprisonment as per the concerned State Jail Manual. As the maximum
sentence prescribed for the offence committed under Section 304 Part-
I, IPC is 10 years and the appellant is stated to have already undergone
10 years of actual imprisonment, it is directed that he be released
                                                                                  E
forthwith, if not required in any other case.
          19. Thus, the appeal stands disposed of, accordingly.


Nidhi Jain                                                  Appeal disposed of.
                                                                                  F




                                                                                  G




7
    (2015) 4 SCC 363 at Para 15, 17-18.
                                                                                  H